Planned Parenthood of Montana files preemptive lawsuit seeking to stop new abortion legislation

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Planned Parenthood of Montana filed a preemptive lawsuit Monday seeking to stop legislation that would ban the abortion method most commonly used in the second trimester, arguing the proposed law is unconstitutional.

The nonprofit organization filed the complaint over the proposal to ban dilation and evacuation abortions before the bill has been forwarded to Republican Gov. Greg Gianforte. The organization asked for the court to at least temporarily block the legislation because it would take effect immediately upon being signed, causing irreparable harm to its patients.

The lawsuit came on the same day that the U.S. Justice Department appealed a Texas court ruling that would halt approval of the most commonly used method of abortion in the U.S., calling the decision "extraordinary and unprecedented."

The request to the 5th U.S. Circuit Court of Appeals was filed just days after conflicting court rulings over the legality of the abortion medication mifepristone put in doubt access to the drug that has been widely available for more than 20 years.

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Montana's Supreme Court ruled in 1999 that the state constitutional right to privacy includes the right to a pre-viability abortion from a provider of choice, the Montana lawsuit states.

"Despite our state constitution clearly protecting the right to abortion and Montanans' insistent calls for bodily autonomy and personal freedom, our lawmakers remain hell-bent on banning abortion method by method, law by law," Martha Fuller, president and CEO of Planned Parenthood of Montana, said in a statement. "Banning one of the safest and most common methods of abortion will put lives at risk."

Republican Gov. Greg Gianforte signs a bill restricting access to abortion in Montana as state Rep. Lola Sheldon-Galloway watches in Helena, Montana, on April 26, 2021. Montana's Planned Parenthood filed a preemptive lawsuit on April 10, 2023, seeking to stop legislation that would ban a common abortion method. (Thom Bridge/Independent Record via AP, File)

The governor's office criticized the timing of the lawsuit.

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"The fact that the bill hasn’t even come to the governor’s desk for his review and Planned Parenthood is already running to court tells Montanans everything they need to know about the far left, pro-abortion group and its extreme tactics," Kaitlin Price, a spokesperson for Gianforte, said in an emailed statement.

The bill, sponsored by Republican House Speaker Matt Regier, threatens medical providers with a fine of up to $50,000 and up to 10 years in prison for performing this type of abortion. It also seeks to put into law that Montana's constitutional right to privacy does not include a right to an abortion.

The speaker's father, Republican Sen. Keith Regier, is also sponsoring legislation seeking to overturn the 1999 Supreme Court ruling. That bill has passed the Senate and is scheduled for a second-reading vote in the House on Wednesday.

Legislative attorneys said both bills could have potential problems in conforming with the state's constitution.

Planned Parenthood's complaint, filed in state court in Helena, names the state of Montana and its health department as defendants.

A spokesperson for Attorney General Austin Knudsen said the lawsuit is an attempt to "hijack the courts and interfere with the legislative process."

"The Legislature and Governor should be free to conduct the people's work without the meddling of the courts," spokesperson Emily Flower said in a statement that also questioned the timing of the complaint.

"What's next — Planned Parenthood bringing a lawsuit to stop the Legislature from considering any bill that touches the topic of abortion?" Cantrell asked.

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Montana lawmakers are also considering a bill to require preauthorization before Medicaid or the state's Children's Health Insurance Program would pay for abortions and another to prohibit public funding entirely unless the pregnancy was the result of rape or incest or threatened the life of the mother. A bill to prohibit the abortion of viable fetuses is also moving forward.

Gianforte did sign three bills affecting abortion in 2021 — one to ban abortion after 20 weeks of gestation, another to restrict access to abortion pills and a third to require abortion providers to ask patients if they want to view an ultrasound of the fetus. Those laws remain blocked by the courts.